People ex rel. G.C.M.M.

477 P.3d 792

The PEOPLE of the State of Colorado, Appellee,

IN the INTEREST OF G.C.M.M., a Child, and Concerning S.M.M., Appellant,

and

L.M.D., Appellee.

Court of Appeals No. 19CA2326

Colorado Court of Appeals, Division VII.

Announced October 29, 2020

Modern Family Law, Chelsea Hillman, Denver, Colorado, for Appellant

Law Office of Greg Quimby PC, Greg Quimby, Erica Vasconcellos, M. Addison Freebairn, Colorado Springs, Colorado, for Appellee

Opinion by JUDGE NAVARRO

¶ 1 In this paternity proceeding, we must consider the interplay between the jurisdictional provisions of the Uniform Parentage Act (UPA), §§ 19 -4-101 to - 130, C.R.S. 2019, and the Uniform Child-custody Jurisdiction and Enforcement Act (UCCJEA), §§ 14-13-101 to - 403, C.R.S. 2019. S.M.M. (father) appeals the juvenile court's judgment vacating an earlier custody order for lack of subject matter jurisdiction. Father's child, G.C.M.M., was conceived in Colorado, and father filed this paternity proceeding before the child's birth. The child was born in New Hampshire, however, and has never lived in Colorado. Still, father asserts that the juvenile court could make a custody determination because its jurisdiction over this proceeding was established before the child's birth.

¶ 2 We reach the opposite conclusion. While a paternity proceeding under the UPA may be initiated before a child's birth, the court must also have jurisdiction under the UCCJEA before it may make a child-custody determination as part of the proceeding. The juvenile court here did not have jurisdiction under the UCCJEA because that statute does not provide a basis for jurisdiction over an unborn child. Nor does the UPA expressly authorize a court to make a child-custody determination before the child is born. As a result, we affirm the judgment.

I. Procedural History

¶ 3 In August 2018, father initiated a paternity proceeding under the UPA concerning the yet to be born child. He sought a determination that he was the child's father and an allocation of parental responsibilities — decision-making authority and parenting time — for the child. When father initiated the proceeding, he and L.M.D. (mother) lived in Colorado.

¶ 4 Before the child's birth, however, two significant events occurred for purposes of this case. First, mother moved to New Hampshire. Second, based on the parents’ agreement, a magistrate issued a paternity judgment declaring father the child's parent.

¶ 5 The child was born in New Hampshire in mid-September 2018. Not long after, the parents stipulated to a parenting plan that contemplated father's exercising parenting time with the child in New Hampshire. The magistrate adopted the stipulation and set a permanent orders hearing for July 2019.

¶ 6 Before the hearing, mother moved to dismiss the action based on a lack of subject matter jurisdiction because the child had lived in New Hampshire his entire life. Mother also initiated a child-custody proceeding in New Hampshire. After communicating with the Colorado magistrate, the New Hampshire court stayed its proceeding pending the resolution of the jurisdictional dispute.

¶ 7 The magistrate decided that a Colorado court could make a custody determination because its jurisdiction to determine paternity was properly invoked before the child's birth and such jurisdiction included an allocation of parental responsibilities. The magistrate further reasoned that the court had not lost jurisdiction when mother moved out of the state before the child's birth.

¶ 8 Mother sought review of the magistrate's order by a juvenile court judge. The juvenile court concluded that the magistrate had jurisdiction to determine paternity, but that the magistrate erred by holding that Colorado had jurisdiction to make a child-custody determination. The court also concluded that the UPA provides no authority to restrain a pregnant mother from leaving the state. Accordingly, the court (1) affirmed the paternity judgment; (2) denied mother's request to dismiss the case; and (3) vacated the temporary custody order and directed the magistrate to confer with the New Hampshire court in accordance with the UCCJEA.

II. Jurisdiction

¶ 9 Father contends that the juvenile court erred by concluding that the UCCJEA's provisions limit its jurisdiction to make a custody determination in a paternity case. He argues that the UPA confers broader jurisdiction to make custody determinations than the UCCJEA because the UPA permits a juvenile court to acquire jurisdiction when a paternity action is initiated before a child's birth. We disagree.

A. Standard of Review and Statutory Interpretation

¶ 10 Whether a juvenile court has subject matter jurisdiction over a child-custody proceeding is a question of law that we review de novo. Brandt v. Brandt , 2012 CO 3, ¶ 18, 268 P.3d 406. We also review questions of statutory interpretation de novo. People in Interest of L.M. , 2018 CO 34, ¶ 13, 416 P.3d 875.

¶ 11 In construing a statute, we look at the entire statutory scheme "in order to give consistent, harmonious, and sensible effect to all of its parts, and we apply words and phrases in accordance with their plain and ordinary meanings." Id. (quoting UMB Bank, N.A. v. Landmark Towers Ass'n , 2017 CO 107, ¶ 22, 408 P.3d 836 ). When construing statutes related to the same subject matter, we aim to avoid an interpretation that would render certain words or provisions superfluous or ineffective. Id. Instead, we adopt an interpretation that achieves consistency across a comprehensive statutory scheme. Id.

B. Stipulation to Initial Parenting Plan

¶ 12 To start, we recognize that mother and father initially stipulated to a parenting plan and asked the magistrate to adopt it. But the parties cannot confer subject matter jurisdiction on a court. See In re Marriage of Tonnessen , 937 P.2d 863, 865 (Colo. App. 1996). Furthermore, a question of subject matter jurisdiction may not be waived and may be raised at any time. In re Marriage of Finer , 893 P.2d 1381, 1384 (Colo. App. 1995).

C. Statutory Frameworks

1. The UPA

¶ 13 Paternity proceedings are generally subject to the UPA. N.A.H. v. S.L.S. , 9 P.3d 354, 360 (Colo. 2000) ; see also In re Support of E.K. , 2013 COA 99, ¶ 9, 410 P.3d 480.¹ Except as otherwise provided by law, the juvenile court has exclusive jurisdiction to determine the parentage of a child who was conceived in the state and to make an order of support in connection therewith. § 19-1-104(1)(f), C.R.S. 2019; § 19-4-109(1), (2), C.R.S. 2019. A paternity proceeding may be initiated before a child's birth. § 19-4-105.5(3), C.R.S. 2019.

¶ 14 Except as otherwise provided by law, the juvenile court may determine the custody of a child who otherwise comes within its jurisdiction. § 19-1-104(1)(c). Once a paternity proceeding is initiated, a temporary injunction goes into effect restraining each parent from removing from the state a child who is the subject of the proceeding. § 19-4-105.5(5)(c)(I)(B). The court may also issue orders concerning the allocation of parental responsibilities, including determinations of decision-making authority and parenting time, as part of the proceeding. §§ 19-4-111(4), 19-4-116(3)(a), 19-4-130(1), C.R.S. 2019.

2. The UCCJEA

¶ 15 In addition to the UPA, the UCCJEA governs whether a court has jurisdiction to address custody matters, including an allocation of parental responsibilities. See Madrone v. Madrone , 2012 CO 70, ¶ 10, 290 P.3d 478. Indeed, the phrase "[e]xcept as otherwise provided by law" in section 19-1-104(1) indicates that the juvenile court's jurisdiction is limited by other legislative enactments. Nistico v. Dist. Court , 791 P.2d 1128, 1129 (Colo. 1990).

¶ 16 The UCCJEA is designed to avoid jurisdictional competition between states over child-custody matters in an increasingly mobile society. Brandt , ¶ 19. To accomplish this purpose, the UCCJEA establishes a comprehensive framework that a Colorado court must follow to determine whether it may exercise jurisdiction in a child-custody matter or whether it must defer to a court of another state. In Interest of M.M.V. , 2020 COA 94, ¶ 17, 469 P.3d 556. Absent emergency jurisdiction, a court of this state may make an initial child-custody determination only if it has jurisdiction to do so based on the grounds identified in section 14-13-201, C.R.S. 2019. Madrone , ¶ 10 ; see also In re Parental Responsibilities Concerning B.C.B. , 2015 COA 42, ¶ 10, 411 P.3d 926.

¶ 17 Section 14-13-201 contains four independent grounds for jurisdiction to make an initial child-custody determination. People in Interest of S.A.G. , 2020 COA 45, ¶ 20, ––– P.3d –––– (cert. granted 2020 WL 5524169 ). First, a court may have jurisdiction if Colorado is the home state of the child on the date of the commencement of the proceeding or was the home state within 182 days of the commencement of the proceeding. § 14-13-201(1)(a). A child's home state is the state in which the child has lived with a parent for at least 182 consecutive days immediately before the commencement of the proceeding or, for a child less than six months of age, the state in which the child has lived from birth. § 14-13-102(7)(a), C.R.S. 2019. The UCCJEA prioritizes home state jurisdiction for initial child-custody determinations. Madrone , ¶ 11.

¶ 18 The other three bases for establishing jurisdiction apply when Colorado is not the child's home state. S.A.G. , ¶ 20. They include "significant connection" jurisdiction, "more appropriate forum" jurisdiction, and "last resort" jurisdiction (no court in any other state would have jurisdiction). Madrone , ¶¶ 15-17 ; see also § 14-13-201(1)(b)(I), (c), (d). No party asserts that any of these other bases applies here.

D. Jurisdiction to Determine Paternity

¶ 19 We first conclude that the juvenile court properly determined that it had jurisdiction to determine the child's paternity.

¶ 20 The UCCJEA covers a wide variety of child-custody matters, defined as child-custody determinations and child-custody...